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Choosing Between Theories of Justice: A Contextual Approach

Disagreements about social justice, particularly at the public level, tend to focus on competing conceptions of what a just society would look like. This might seem like the natural consequence of the existence of multiple coherent theories of justice. But if in choosing a theory of justice, we make our choice primarily by way of selecting the society that would be produced by that theory, we are really engaging in nothing more than an advanced form of moral intuitionism. Each major theory is mature enough to be internally consistent in at least one of its flavors, so if a theorys premises are correct, we must conclude that its recommendations for a just society are also correct, despite intuitions otherwise. In other words, the most important part of a theory for resolving deep disagreements about the shape of social justice is the theorys selection criteria, the mechanism by which we know that a theory is right, not its implications. To instead focus on these implications in a debate of substantive questions of justice undercuts the point of using a well-formed theory in the first place. Phrased this way, such a conclusion might seem unnecessary and definitional, but it is something that is easy to forget in the face of a specific issue of justice. Keeping this in mind, it is easy to show that focusing on selection criteria alone makes choosing between theories of justice much easier. I will limit my discussion to John Rawls Justice as Fairness and communitarianism as articulated by Michael Walzer since these seem to have the most compelling selection criteria of the major theories. The reasoning for this will be outlined briefly without extensive justification in the interests of brevity. Having narrowed my examination to these two theories, I will briefly show why Rawls selection mechanism is compelling but ultimately not fully satisfactory, and why communitarianisms selection mechanism provides many satisfying alternatives where Rawls falls short. However, I will also

2 briefly note the deficiencies of Walzers approach as well, offering in response some brief speculation on what the right theory could look like. While thoroughly refuting the other major theories of social justice is beyond the scope of this paper, a brief outline of why they are being passed over serves the double purpose of broadly justifying this decision and helping to define, in contrast, what makes the two theories specified above particularly attractive. First we have utilitarianism, which despite its intuitive appeal does not really have any compelling selection criteria since it fails to show why aggregate happiness is the only thing that should matter morally. Particularly at the individual level, its demands are so strong as to render the entire theory an implausible one for real human beings to follow. Next, we have Nozicks theory, which is intuitively appealing as well but does not offer a convincing account, nor really any account for that matter, as to why it uses Locke as a moral starting point; Nozick calls it a task for another time (9). His selection mechanism, in which he uses the Wilt Chamberlain example to show why all patterned theories are wrong, seems unconvincing. Thus while less improbable than utilitarianism, his theory has clearly inadequate selection criteria as well. Deliberative democracy theorists do not make too much of an effort to show why we should view deliberative democracy as the primary fundamental ideal, probably because they are more concerned with implementation than selection. They take care to define their theory as distinct political ideal from Rawls and the communitarians, but they do not make a substantial attempt discredit the other theories except on a practical basis. For example, while Cohen distinguishes his theory from Justice as Fairness, he still agrees with Rawls goals for a theory of justice, just not their execution: in other words, he is not as concerned with the selection criteria (70-71). Since the deliberative democrats at this point in time have not given much attention to exclusive selection, I will not give it much attention either. This leaves us with Rawls

3 and the communitarians as the major contenders for a satisfying account of why their theories are correct. Before simply moving on, however, it is useful to review the other dimension of the theories briefly covered above. What is it about Nozick and Bentham that attracts us, despite their very obvious difficulties justifying their theories? From Bentham and the other utilitarians, the ideas of promoting happiness and equality for members of society resonate. The general ideas of autonomy and liberty from Nozick seem like something that should play a fundamental part in our conception of justice. Rawls pays attention to these ideas and provides an account of justice that accommodates them all at some level both in his theory and in his selection mechanism, the original position. Within the bounds of his explanation, the conception of justice that stems from the original position is quite powerful and coherent. However, upon closer examination, several problems with Rawls original position emerge. Walzer himself points out one set of these problems directly: the inherent conflict between specificity of meaning and abstractions of universal scope. According to Walzer, each society has an idiosyncratic set of goods, distributions schemes, and cultural meanings tying them together: [t]here is no single set of primary or basic goods conceivable across all moral and material worldsor, any such set would have to be conceived in terms so abstract that they would be of little use in thinking about particular distributions (8). This paradox of specificity characterizes Walzers criticism of Rawls across many different examples: either the original position is universal and therefore cannot tell a society anything of value, or it is specific and valuable but then not universal. No matter what scheme Rawls uses to lift the veil of ignorance to adapt the parties in the original position to the specific society, he runs into the problem that he has rather specifically defined what primary goods are already from the very beginning, begging the question so to speak. In this sense, he has basically cheated by using goods that are valued by

4 our society, giving the original position resonance but only the appearance of abstraction. Frank Lovett, in his exposition of Rawls seminal work, uses a metaphor for capturing the spirit of the original position: he describes it as the task of dividing between two brothers with equal claims a large heterogeneous herd of cattle inherited from their father (19). The just thing to do in this case, analogous to Rawls argument, would be to have one brother divide the cattle into two lots and have the other brother choose between them. The claim analogous to Walzers argument, however, is that if Rawls is serious about his veil of ignorance, the person who would divide the cattle among the brothers would be a third party who knew nothing about being a cattle farmer and thus might create two herds of unequal and/or suboptimal composition. Michael Sandel, supporting the case of communitarianism in Democracys Discontent, makes a similar claim about specificity with regards to actual individuals this time rather than goods: the unencumbered self cannot make sense of our moral experience, because it cannot account for certain moral and political obligations that we commonly recognize, even prize solidarity, religious duties and ties that may claim us for reasons unrelated to a choice (13). Sandel points out the limitations of Rawls mutual disinterest feature of the original position, which cannot capture interpersonal relationships. At least as importantly, he astutely reminds us of something that moral philosophers sometimes seem to forget. Morality, for a strictly rational, self-interested being, is not anything more valuable than an instrumental means for getting along optimally in human society. Of course, in real life, nobody thinks that way except sociopaths, but that does not make non-sociopaths more logical as a result. Rawls somewhat acknowledges this by stipulating repeatedly that people in the original position have a general sense of justice that goes along with our generally shared conceptions of what justice means (21). If we accept his argument that he is not begging the question by agreeing with his claim that such original convictions cannot be derived in the traditional sense (something that if

5 we think about it carefully, might still cause problems as a part of the original position), we are still left with a gigantic problem: what about all the moral convictions that we do not share? Consider the case illustrated by Sandel in the same book (20-21). How does Rawls theory of justice help us decide the issue of abortion? We might think that people in the original position would morally bracket the issue to accommodate everyones beliefs, allowing women to decide for themselves whether to get an abortion. After all, if one does not want an abortion based on moral grounds, one does not have to have one. But what if one has the moral conviction that abortion is a type of murder? On this view, bracketing abortion is about as absurd as bracketing infanticide. Considered from this perspective, it becomes readily apparent that bracketing is no neutrality at all; it is in fact an implicit judgment. The original position with its abstract, morally pluripotent agents cannot even capture this, nor can it resolve any deep-seated moral conflicts in real life. Particularly among the secular, we may think that our morals are logically derived, but that is largely not correct (Hume?). Logical moral argument often fails to resolve moral conflicts between the deeply convicted since the heart of the disagreement is usually not the logic, but the premises. Even those with a will to change their minds often simply cannot change their hearts and are forced into an uncomfortable limbo between what they logically understand to be right and what they emotionally feel to be right. A frank conversation with a turned agnostic raised in a deeply religious home is an easy place to explore this human phenomenon. I see a few other problems with Rawls original position that also bring its validity as a selection mechanism sharply into question. Most of these center around what the original position gets wrong algorithmically, according to my analysis, rather than what it misses (as addressed above). While keeping in mind that the original position was never intended to be considered a historical or realistic situation, if we take Rawls at his word, then the parties in the

6 original position know the general facts about science, economics, and anything relevant to the questions of justice (137-38), but they know nothing about themselves or their own individual goals or values, nor are they allowed to ranks systems of values (19). The main problem here from a game theory perspective is that the parties in this situation have nothing to lose. We attach special value to our lives because we have lived them; the enormous degree to which we value our lives over others would be irrational if felt from a third-party perspective. We must assume that no one in the original position would attach any special value of that sort because a) there would be nothing to attach it to at the time, and b) presumably the parties would figuratively have to face up to the consequences of their decisions in the original position by living lives as individuals only after they had made all of their decisions in the original positions alreadythat is, they would only form their special attachment to their lives after all their decisions had been made. There is no way to easily conceive of replicating this attachment in the original position. Keeping this in mind, let us examine Rawls difference principle, taking particular note of his maximin rule for distribution of primary goods that he details carefully and plausibly in Chapter 26. He does an excellent job explaining why maximin would be a better rule than simple maximization of expected value, both in terms of reducing strains of commitment and guaranteeing a life that most of us would find at least acceptable. What he does not explain well is why the original position as originally stipulated would lead to a maximin game strategy. Rawls claims that, for the player, [i]t is not worthwhile for him to take a chance for the sake of a further advantage, especially when it may turn out that he loses much that is important to him (154). In other words, this means the party in the original position is risk-adverse. According to probability mathematics, to be risk-adverse is to favor the minimization of losses rather than the maximization of expected value. Being risk-adverse only makes sense if one has something to lose that has more value than its simple quantitative assessment from a third-party perspective

7 would indicate. I argue that a party in the original position, which should be the ideal decisionmaking equivalent of a third party, cannot logically be risk-adverse because in the original position such a party has not yet gained anything to value in this way (like a history of living, for example). Why should the party care if he might have a less than adequate life if he could also have a much more than adequate life? What if the original position could include the option for people to be euthanized painless at birth to greatly improve the lives of those who remained alive, perhaps exponentially so for a certain population threshold in a situation like an overcrowded society? Risking a painless, amnesiac euthanasia for a shot at a better life would not be an unreasonable gamble from a mathematical perspective. We could stipulate that only options above the bottom threshold of adequate appropriation would be acceptable (which basically Rawls has done), but then why should not the threshold be more than adequate? None of these questions are answerable with Rawls original position because it is impossible to determine how risk-adverse an abstract party with nothing to lose beyond the outcome of an expected value experiment would be; there is nothing we can do that will justify the threshold of minimax besides adding an ad hoc stipulation. To say that this is not the case is similar to arguing that one should play a hand of poker with the same strategy regardless of whether one is the player required to post the big blind: it would ludicrous to suggest that this is the only strategy worth considering and, arguably, questionable to consider it seriously in the first place. Finally, we come to perhaps the most fundamental criticism of Rawls selection criteria, one that is the easiest to plausibly dispute, but also the one with the most far-reaching implications if it is correct. What if the contractualist premise is wrong? Certainly, it offers a nice vision of a position of original liberty and autonomy that, even if it never existed, makes an attractive starting place for justice. But why should this be relevant? There is never a point in almost anyones life where they do not live in heavily dependent association with other humans,

8 particularly in the modern era. By the biological constraints of our species, variation notwithstanding, we must spend a significant amount of time being cared for as children. We exist due to social arrangements. With an extremely few exceptions, we cannot exist without them, and as a species we never have. Why should a hypothetical state of complete autonomy then be the starting point for justice? Besides simply asking rhetorical questions, it is possible to examine his underlying assumptions to find more substantial, specific ground for difference. Rawls continually talks about the precedence of equal liberty, going so far as to state, liberty can be restricted only for the sake of liberty itself (244). Why is maximal liberty f or all a fundamental characteristic of human condition, or even the ideal human condition? It seems like a preferable state of being versus slavery, for example, but otherwise very unnatural. If we think about humans from an anthropological perspective, it does not seem to be unjust governments that prevent them from dissociating autonomously, but rather their human desire to be together. While Rawls emphasizes that the original position is purely hypothetical, freeing it from the constraints of history, on my view and that of many others including David Hume, this simply makes it all the more irrelevant of a consideration. If liberty is not to be the foundation of our chosen theory, then what is? Michael Walzer has a ready answer: equality. This is not to say, of course, that Walzer does not care about liberty and that Rawls does not care about equality; rather, they just assign these two ideals different primary priorities. In the end, Walzer is looking for the same thing Rawls is, a type of social liberty maximization, which he describes as a society free from domination (xiiii). They are not so different in the ideology of their goals; they simply start out at different ends of the spectrum. Walzers approach is better. His selection criteria (at least on its own) is much more difficult to defeat than Rawls because he does not create a complex hypothetical situation and then claim that it applies to the

9 real world so powerfully as to determine a universal conception of social justice. Instead, Walzer just describes the way the world works already, and he does so convincingly with lots of historical examples and to my judgment, does not leave himself open to any counterexamples, since his descriptions are so broad. He uses the community context thesis to develop a method to maintain complex equality, self-reinforcing way to perpetuate the short-term benefits of simple equality. The account he gives of why equality should be the goal, besides the liberty it entails, is compelling the same way his theory is: he makes a very simple appeal to the thing that we all fundamentally share, our humanity (xii). Despite our individual differences, controlling for the random and non-random effects of variation between us, Walzer reminds us that we are all human and in that most fundamental capacity, are each others equals. On my view, this is a far more compelling starting point than Rawls not just because it is something that always has been and ostensibly always will be a fundamental characteristic of our societies, but also because it captures the intuition that we owe something to each other based on our mutual dependence. By contrast, Rawls theory appears ignorant, almost arrogant in its autonomous conception of what the starting relationship between human beings in the same society ought to be. The details follow easily, solving all of the problems addressed above to Justice as Fairness. The community context thesis easily solves the specificity problem that Rawls has and makes Walzers theory universal at the same time. We do not have to worry about minimaxing, or moral bracketing, or a state of nature that did not exist and maybe never should have existed. The only focus is the society under examination, its current goods/distribution schemes, and its shared values. None of these things are typically esoteric; indeed, one of the features of Walzers theory that makes it so plausible is that the aspects of society that he bases his theory on are arguably the most visible characteristics, leaving little room for argument. Walzer has a unique answer to the strains of commitment problem: complex equality gives people multitude of

10 potential means for achieving what Rawls called a basis of self respect, which seems more convincing than simply realizing that one is not as worse off as one could have been (440). Walzers communitarianism is not perfect, however. He covers the theoretical gaps left by Rawls but leaves some gaps of his own in the realm of practicality. In a society like ours, how does one act on shared values, particularly with regard to inflammatory issues? The communitarianism expectation of cooperation might sometimes seem impractically optimistic about peoples willingness to compromise or change their minds. Sometimes it seems that Walzer is struggling between trying to keep his theory pluralist and telling us what is best; his rather scattered advice on the political sphere lacks the rigor of, for example, an IDP, though he still backhandedly prescribes democracy (maybe he needs an IDP). Finally, despite the rigorous selection mechanism, communitarianism ironically enough is in some ways less resonant than Rawls theory for America (possibly because of Rawls bias towards our shared values) and more applicable for a country like the Peoples Republic of China (Bell), a country we normally take for granted to be beneath us in the hierarchy of just societies. The specifics of any theory beyond the selection criteria, however, are beyond the scope of this inquiry. The right comparison to make first between theories of justice is their selection criteria, and communitarianism seems to clearly hold up the best in that arena; however, in some matters of practicality it offers us a more vague, less convincing account beyond its selection criteria. Perhaps it can be extended or made more specific. But on my view, the incompleteness of this solution is a heartening result, for it leaves open the possibility that we have yet to encounter the right answer to social justice, which we would hope is more resonant, practical, and theoretically firm than those of either Rawls or Walzer, impressive as they are.